Multiple Injury Trust Fund

St. John Medical Center v. Bilby, 2007 OK 37, 160 P.3d 978.

Stidham v. Special Indemnity Fund, 2000 OK 33, 10 P.3d 880.

All portions of the Special Indemnity Fund Act that affect the outer limit of the Fund's statutory liability stand construed as a restraint on the Workers' Compensation Court's jurisdictional power: [1] One's status as a physically impaired person is treated as a jurisdictional fact and reviewed de novo. See, e.g., Garrison v. Bechtel Corp., 1995 OK 2, 889 P.2d 273, 278-79; Special Indem. Fund v. Choate, 1993 OK 15, 847 P.2d 796, 801; Special Indem. Fund v. Stoveall, 1962 OK 26, 368 P.2d 847, 848; Special Indem. Fund v. Smith, 1952 OK 110, 242 P.2d 159, 161; Special Indem. Fund v. Hunt, 1948 OK 58, 190 P.2d 795, 797-998. [2] Other jurisdictional requirements are: (a) that the claimant (a physically impaired person) suffer a compensable injury under the compensation law which results in additional permanent disability, and (b) that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone. Special Indem. Fund v. Wilbanks, 1959 OK 115, 340 P.2d 469, 471; Hunt, supra at 797. [3] When the Fund's liability is found to have been anchored in an incorrect calculation of critical disabilities, the award will be vacated for lack of the essential jurisdictional underpinning. Special Indem. Fund v. Chambers, 1960 OK 233, 356 P.2d 1094, 1096.
Stidham v. Special Indemnity Fund, 2000 OK 33, 10 P.3d 880, fn20.

An overview of the MITF (formerly Special Indemnity Fund) is found in the case of Multiple Injury Trust Fund v. Wade, 2008 OK 15, 180 P.3d 1205.

Employer waived the statutory time-bar for reopening an award and joint petition settled the claim. Subsequent claim against the MITF was denied by the trial judge. Supreme Court held that employer's waiver "could not operate also to waive that defense for the Fund." Reynolds v. Special Indem. Fund, 1986 OK 64, 725 P.2d 1265.

Oklahoma jurisprudence requires that the liability of the Fund on a §84 settlement with the employer be preserved by an on-the-record reservation of right to proceed against the Fund. Reynolds v. Special Indem. Fund, 1986 OK 64, ¶13, 725 P.2d 1265, 1270 n. 19; Special Indemnity Fund of State v. Corbin, 1948 OK 244, ¶3, 199 P.2d 1020, 1021; Berna v. Maloney-Crawford Tank Co., 1955 OK 55, ¶7, 281 P.2d 736, 738.
Jobe v. American Legion #7, 2001 OK 75, 32 P.3d 860; see also Reynolds v. Special Indem. Fund, 1986 OK 64, 725 P.2d 1265

1. Statutory Construction

The liability of the Fund and employers to a "physically impaired person" for materially increased disability as a result of combination of disabilities was and is entirely statutory. 85 O.S. §§171, 172; Special Indem. Fund v. Hulse, 1967 OK 219, 441 P.2d 366, 368.

2. Applicable Law

A claimant's right to receive, and an employer's obligation to pay, benefits for increased disability as a result of the combination of disabilities were and are fixed by the terms of 85 O.S. §172 at the time of the latest injury. Multiple Injury Trust Fund v. Pullum, 2001 OK 115, 37 P.3d 899, 907; Special Indemnity Fund v. Archer, 1993 OK 14, 847 P.2d 791, 794-795.

3. Obvious and Apparent

Unadjudicated injury or illness is combinable if it results in "the loss of the use or partial loss of the use of a member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession." Special Indem. Fund v. Figgins, 1992 OK 59, 831 P.2d 1379 (injury to lungs and respiratory system is not combinable); Osborn v. Special Indemnity Fund, 1998 OK CIV APP 37, 957 P.2d 133 (mental injuries such as PTSD); Special Indemnity Fund v. Schultz, 1992 OK 60, 831 P.2d 1385, 1386 (removal of colon and rectum); Hart v. Special Indem. Fund, 1993 OK CIV APP 167, 867 P.2d 1351 (hearing loss).

4. Necessity of VR Evaluation

"No person shall be adjudicated to be permanently and totally disabled unless first having been evaluated as to the practicability of restoration to gainful employment through vocational rehabilitation services or training." 85 O.S. §16(A). "[A]n injured worker is considered permanently and totally disabled only if the worker cannot be restored to gainful employment following a period of rehabilitation." Mangrum v. Fensco, Inc., 1999 OK 78, §6, 989 P.2d 461, 463; Superior Bronze & Granite of America v. Cole, 2005 OK CIV APP 55, 118 P.3d 778 (combined disability against the last employer). Since §16(D) benefits are not available against the MITF, PTD should be awarded only if competent evidence supports the conclusion that retraining is not practicable. This may be established by a competent medical opinion without an examination by a vocational counselor.

5. Out-of-State Awards

Out-of-state workers' compensation awards can not be used to qualify a worker as a previously impaired person under 85 O.S. §171. Special Indem. Fund v. Bedford, 1993 OK 60, 852 P.2d 150. Such awards were permitted due to legislative language enacted in 1971 ("or the state industrial court, board, or commission of any other state in the United States"). This wording was deleted in 1986 and effective July 1, 2005 reads " . . . any previous adjudications of disability adjudged and determined by the Workers' Compensation Court. . . "

6. Statutory Time Bars

The time limitations of 85 O.S. §43B apply to MITF cases, and bar recovery when a request for hearing and final determination occurs more than three years (or five years if last injury occurred before 7-1-2005) after the filing of the latest injury claim or after the last payment of compensation, whichever is later. Multiple Injury Trust Fund v. Wade, 2008 OK 15, 180 P.3d 1205.

Since payments of MITF benefits commence on the last date when a lump sum settlement of the last injury would have been paid if it had been paid weekly under Multiple Injury Trust Fund v. McGrary, supra, the statute of limitations does not commence to run until the date of such "equivalent weekly payment." Stenhouse v. MITF, 2008 OK CIV APP 67, 190 P.3d 1194.

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